The Appellate Division of New York, Second Department, recently upheld a lower court’s decision denying a defendant manufacturer’s application to perform destructive testing on a plastic object surgically removed from plaintiff, despite defendant’s expert opinion that destructive testing was necessary to discern the product’s composition.

The decision shows that while destructive testing may be reasonable, necessary and relevant to proving a design, manufacturing, or causation defense, courts may not approve destructive tests without expert witness support for conducting destructive testing, including why less invasive methods are insufficient.

In Doerrer v. Schreiber Foods, Inc., plaintiff sued food manufacturer Schreiber Foods, Inc. after choking on a plastic object allegedly contained in defendant’s Swiss cheese.

After failing to determine the object’s composition through non-destructive testing, defendant moved pursuant to CPLR 3120(1) and 3124 to slice a piece of the object and examine using Fourier Transform Infrared Spectroscopy. Defendant supported their need for deconstructive testing with an expert affidavit. Plaintiff countered with an expert affidavit arguing another form of non-destructive testing, “micro-FTIR,” would produce conclusive results without altering the object’s integrity. Notably, defendant’s expert did not contest the validity of plaintiff’s expert opinion in reply.

Quoting Castor v. Alden Leeds, Inc., 116 A.D.2d 549, 550, (2d Dep’t 1986), the Court held a “party seeking to conduct destructive testing should provide a reasonably specific justification for such testing . . . including that testing is necessary. . . .” Likely due to defendant’s failure to address plaintiff’s expert opinion in reply, the Appellate Division held defendant had failed to establish there was no adequate nondestructive test available — leaving destructive testing as the only method to obtain the sought information.

For more information, please contact Judi Abbott Curry at (212) 313-5404/, Wayne L. Gladstone at (212) 313-5491 / or the Harris Beach attorney with whom you usually consult.

This advisory does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.